COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68940 IN RE: DANTE MANIGAULT, : A Minor : : Appellant : DATE OF ANNOUNCEMENT OF DECISION MARCH 7, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Juvenile Court Division Case No. 9413624 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Appellee: For Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender KENNETH J. LUSNIA, Assistant Jean M. Gallagher, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - JAMES M. PORTER, J., Appellant Dante Manigault appeals from the finding of delinquency arising out of two counts for acts which would be rape (R.C. 2907.02) if committed by an adult. The victim, Orlando Ross, was eleven years old at the time of the commission of these offenses. Orlando attended Carver Elementary School, grade five, during this time. He took a bus to school. The victim testified he was twice taken by the appellant, who was sixteen years old, to a wooded area near a pond in the vicinity of the victim's home. Each time it was during the morning after the victim had missed his bus. The existence of the location was confirmed by a Cleveland detective and by the appellant himself. The victim recognized the appellant from a previous circumstance, and although he knew his first name, he did not know his last name. He stated he was positive that appellant was the individual who raped him. The victim stated that, each time the appellant pulled the victim's pants down, the appellant put his penis in the victim's butt. The victim clearly stated this happened twice and that he felt pain in his butt and was afraid of the appellant. The victim continued to confirm these acts on cross-examination. When the victim had trouble sitting at school, his teacher told the victim's father and the victim finally told his father about the episodes. - 3 - The father took the victim to Mt. Sinai Hospital where he was examined. J.D. McEnroe, M.D., examined him and found evidence of trauma to the rectum. The trauma consisted of tearing in the forward area of the anus with varying stages of healing in evidence. The doctor testified the tear was approximately inflicted at least 48 hours before or within a week or two. Dr. McEnroe testified that such physical injury to the rectum was consistent with the victim's complaints and was consistent with penile penetration, but admitted the injury could have been caused by other circumstances. Dr. McEnroe testified that another physician, Dr. Van Cusen, also examined the victim and found other scars in the rectum as areas of possible abuse. The appellant testified and denied the episodes with the victim. He admitted when he first spoke to the CMHA police he gave them a false last name for fear there was an outstanding warrant under his true name. Appellant said he had been in so much trouble, he could not remember with certainty why the warrant was issued. The trial court found the charges supported by the evidence and found the appellant delinquent. This appeal ensued. The sole assignment of error states: - 4 - I. THE VERDICT OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE VICTIM TESTIFIED ABOUT AN ANAL ASSAULT ONLY AND INSISTED THAT DANTE REMOVED HIS CLOTHES, BUT THE MEDICAL RECORDS AND POLICE STATEMENT REVEALED THAT HE TOLD THE DOCTOR THAT PRIMARILY THE ASSAULT WAS IN HIS RECTUM, THAT HIS GENITALS AND BUTTOCKS WERE TOUCHED OVER HIS CLOTHES, THAT HIS CLOTHES WERE NOT REMOVED, AND THAT HE PULLED HIS OWN PANTS DOWN. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's determinations. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. In this case, Orlando Ross, an eleven year old child, testified that he was raped anally by the appellant on two separate occasions. He referred to a wooded location near a pond close to his home where the rapes occurred. The appellant and the Cleveland - 5 - detective confirmed their personal knowledge of this location near the victim's home. The victim affirmatively stated during repeated questioning by both counsel that he was penetrated in the rectum by appellant's penis on two occasions. Physical evidence of multiple rectal tissue tearing, in various stages of healing, was documented by the examining physicians at Mt. Sinai Hospital. Such physical evidence was consistent with the victim's statement and with penile penetration as the doctors testified. Although other possible causes or findings could not be eliminated, it cannot reasonably be said that the trier of fact lost his way in determining the issue of penetration. There exists on the record substantial, credible evidence that the victim knew the appellant, and that the victim's account of multiple rapes was substantiated by the physical scars found by the physicians' examination at Mt. Sinai Hospital. Since consent is not a defense to a rape of a child under 13 years of age, the issue of which party pulled the clothes down for the acts is immaterial. In Re Washington (Aug. 25, 1994), Cuyahoga App. No. 65755, unreported; State v. Sklenar (1991), 71 Ohio App.3d 444, 447. The appellant's testimony gave reason to doubt his credibility. Appellant acknowledged lying to the CMHA police by giving them a false name to avoid the possibility of being arrested on an outstanding warrant. - 6 - On the totality of the facts and circumstances, we cannot find that the trial court's finding of delinquency based on appellant's anal rape of the young boy was against the manifest weight of the evidence. The sole assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Juvenile Court Division, to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .